A recent Hong Kong decision involving a claim for compensation under the Employees' Compensation Ordinance (the "ECO") considered whether injuries sustained by an employee were caused by an accident in the workplace.

In Chau Shui v Tai Tau Tsai Environmental Engineering Limited [2015] HKEC 512, the District Court held that Chau Shui (the "Employee") had suffered a spinal cord infarction as a result of an accident at work and ordered his employer, Tai Tau Tsai Environmental Engineering Limited ("Tai Tau Tsai") to pay HK$1,610,565.18 in compensation.

This decision serves as a reminder for employers to be mindful of the risk of workplace accidents resulting in injury, and for supervisors to take an active role in monitoring the method by which work is carried out so as to reduce the likelihood of accidents at work.

Background

The Employee was employed by Tai Tau Tsai as a labourer on a construction site in Tsim Sha Tsui. As part of his responsibilities, the Employee was required to unpack goods from crates and move them to the required location.

The Employee's case was that, on the day in question, he had to move two wooden boxes which were stacked on top of each other in a very narrow space. In order to do this, he had to bend his body in an uncomfortable position to pass a nylon strap underneath the boxes and hook the strap to a crane. Upon straightening, he felt pain in his back and numbness in his legs and was unable to walk. After an hour he left the construction site by himself and later that day he was admitted to hospital, where he was diagnosed with spinal cord infarct with paraplegia.

Tai Tau Tsai disputed various factual aspects of the Employee's evidence and the opinions of the parties' medical experts differed as to the likely cause of the Employee's injury.

Issues for the court

Under the ECO, an employer has an obligation to compensate an employee who is injured, dies or contracts an occupational disease as a result of an accident arising out of or in the course of his employment.

After assessing the evidence, the District Court was satisfied that:

  1. the Employee had been involved in an accident;
  2. the accident arose out of or in the course of his employment with Tai Tau Tsai; and
  3. the accident was the cause of the injury sustained by the Employee (i.e. the spinal cord infarct).

Court's reasoning

In finding that the Employee had been involved in an accident, the court accepted that an employee could suffer an 'accident' even when he was merely carrying out an act that he would normally carry out during his employment. After reviewing the relevant authorities, the court concluded that an 'accident' in this context means "an untoward event and an unlooked-for mishap" which was unexpected and not deliberate. It further concluded that the incident described by the Employee, involving back pain and numbness in his legs after he passed the nylon strap underneath the boxes, was an accident.

The court was also satisfied that the accident arose "out of and in the course of employment" given that the Employee had been at the workplace carrying out his employment duties at the time the accident occurred.

It was the issue of causation that proved to be more difficult for the court. In particular, the court had to assess whether the spinal cord infarct suffered by the Employee was caused by the awkward position he adopted when moving the boxes.

Medical evidence was submitted by doctors for both parties. Neither one was able to rule out the possibility that the incident at work triggered the onset of spinal cord infarct suffered by the Employee. However, at the same time, neither was able to conclude with medical certainty the exact cause of the Employee's injury.

Although the opinions of the two medical experts differed, the court ultimately preferred that of the Employee's doctor, who formed a view that the spinal cord infarct was probably caused by the awkward posture adopted by the Employee when moving the boxes. The court accepted this conclusion on the basis that it was more logically consistent with the facts and the limited medical studies produced to the court, taking into account the timing of the accident in relation to the onset of the disease and the absence of any history of risk factors found in the medical studies to have triggered spinal cord infarct in other patients.

In concluding that the Employee's injury was in fact caused by the accident at work, the court made it clear that it was not the function of the court to find the sole or medical cause of the injury; it was enough that the accident was found to be a sufficient contributing cause of the infarct.

Implications

The court's approach to the issue of causation is not surprising given the purpose of the ECO, which is to provide compensation to employees who are injured in the course of employment. To that end, the ECO requires employers (among other things):

  • to compensate employees for personal injuries arising from workplace accidents even where the accident occurs through no fault of the employer or in circumstances in which the employee acted contrary to his employer's orders; and
  • to procure and maintain a policy of insurance of not less than the prescribed amount in respect of such liabilities.

This decision highlights the risk that an employer may be held liable to compensate an employee who suffers an injury after a workplace accident, even where there is some uncertainty as to the precise cause of the injury. It also serves as a useful reminder to employers (particularly those whose employees perform manual labour) of the importance of ensuring that employees adopt safe work practices when performing their duties in order to reduce the risk of accident resulting in personal injury.